January, 1887, and it was during the spring and summer of 1887 that the matters complained of in these proceedings occurred. The object of the action is to remove Scates from office for alleged misconduct, under section 219, c. 25, Comp. Laws 1885, p. 300, which reads: "If any board of county commissioners, or any commissioner, or any other county officer, shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the Code of Civil Procedure." The petition alleges that the acts complained of were done "corruptly, and with the intent to defraud the tax-payers of Seward county." This case has been under advisement for several months. All the members of the court have carefully examined and fully considered the testimony. The differences among the members of the court as to the judgment which should be rendered has been the cause of the delay in filing this opinion. In regard to the claim presented against Seward county in the name of T. N. Sedgwick, for $1,500 as attorney's fees, and $488 for traveling expenses, the majority of the court think that the testimony does not show that the charge is illegal. The alleged retention or conversion of $1,513 of the claim or county warrants issued to pay the same by Scates rests almost wholly upon the testimony of A. B. Carr. The majority of the court do not believe him worthy of credit, and therefore are unwilling to accept his testimony as truthful. If his evidence is rejected, or if it is held that it is sufficiently denied by the evidence of the other witnesses, there is not any testimony showing, or tending to show, that Scates acted dishonestly or corruptly in allowing the Sedgwick claim, or that he in any way realized any personal benefit or advantage therefrom. The writer of this thinks, from the testimony, that there was a corrupt agreement between Carr, Scates, and G. S. Stein, which resulted in the presentation of the Sedgwick claim for $1,988, and that only $475 of this went to Sedgwick, the balance being for the benefit of Scates, Carr, and Stein. Concerning the other charges alleged in the petition, the majority of the court are of the opinion that, while many of the allowances made by Scates, as a member of the board of county commissioners of Seward county, were extravagant, and several of them not strictly legal, yet that the testimony does not disclose any corrupt or intentional wrong upon his part in voting to allow these claims, or in issuing county warrants therefor. The majority of the court do not think that the testimony shows, or tends to show, that Scates obtained any personal advantage or benefit from the allowance of any of these claims. In support of the good faith of Scates, it is also urged by the majority of the court that all of these claims were allowed upon the advice of able and competent attorneys. With these conclusions, v.23p.no.9-31

however, I do not concur. As the majority of the court do not find that any of the acts complained of were done by Scates corruptly, or with the intent to defraud the tax-payers of Seward county, judgment will be rendered in his favor, and against the plaintiff. It seems unnecessary to recite or comment upon the testimony presented upon the hearing. It is very voluminous and contradictory. If the important parts were incorporated in the opinion, it would cover many pages. The defendant will recover his costs.

VALENTINE, J. I do not concur in the foregoing opinion of the chief justice, although I think I can say I concur in the judgment recommended. During the year 1887, T. A. Scates, W. W. Kimball, and Edwin A. Watson constituted the board of county commissioners of Seward county, and during that time, and principally in April, 1887, they allowed a number of claims against the county of Seward, for which the defendant Scates is now prosecuted in this action. Some of such claims, as I think, were unreasonable, indeed unconscionable; and some of them, or, at least, portions of the amounts allowed, were illegal. In my opinion, the Sedgwick claim spoken of was unreasonable, both in the amount claimed and the amount allowed. Seward county warrants, or, in other words, Seward county scrip, was at that time worth only about 70 cents on the dollar, and the county board generally allowed an amount on each claim, and issued scrip therefor, which, if sold at its market value, would bring the amount in cash of the original claim. In one instance, and one of the earliest, if not the earliest, where the claim was about $2,877, the board allowed the sum of $4,106.09, and issued scrip for the last-named amount, the difference between the two amounts being over $1,000; and if the members of the board had been prosecuted under section 3 of the act to restrain the issuing of county warrants, and found guilty, they would, and should, in my opinion, all have been removed from office. Comp. Laws 1885, p. 301, par. 1699. Said section 3 also applies to county clerks. ver Leisure was the county clerk. His case has been disposed of. State v. Leisure, 42 Kan. --, 21 Pac. Rep. 1070. But not one of the guilty parties, the county commissioners or the county clerk, has ever been prosecuted under said section 3. Scates is now prosecuted under section 180 of the act relating to counties and county officers. Comp. Laws 1885, p. 300, par. 1694. That section provides that a county officer may be removed from office for a neglect or refusal to perform his official duties, or for corruptly or oppressively performing the same, and does not provide for any removal from office for any other cause. Now, there is no pretense under the facts of this case that Scates so neglected or refused to perform the duties of his office, or so oppressively performed them, that he could be removed from office for any

Oli

such reasons, but the only claim made as against him is that he so corruptly performed the duties of his office that he may be removed therefrom. It is not claimed that he can be removed from his office because he united with the other members of the board, or either of them, in allowing unreasonable claims or illegal claims, unless it can also be said that in the allowance thereof he acted corruptly. In my opinion, as above stated, every member of the board might have been removed from office by a prosecution under section 3 of the act to restrain the issuing of county warrants, for the reason that they allowed amounts on the claims presented to them greater than the actual amounts of the claims themselves, and for issuing county warrants or county scrip which included these increased amounts; yet all the members of this court agree that no one of them could be removed from office under section 180 of the act relating to counties and county officers, for allowing such excess, unless he received some portion of the excess himself, or unless he received a bribe of some kind for making such excessive allowance. My opinion, however, is that if any member of the board united with the other members, or either of them, in allowing to himself an excessive amount on his own claim, and received the same, he might be prosecuted and removed from office under section 180 of the act relating to counties and county officers, as well as under section 3 of the act to restrain the issuing of county warrants. But the chief justice says that no instance of an excessive amount being allowed and received by a commissioner is shown by the evidence introduced in this case, and I think this statement is correct. Therefore the defendant, Scates, cannot be removed from office in this case, unless actual and absolute corruption is shown against him, and it seems virtually to be admitted that no corruption is shown against him unless it is shown by the testimony of A. B. Carr. Now, in my opin- | ion, in the light of all the evidence in the case, the testimony of Carr is wholly unworthy of credit; and in its material statements it is not only against a large preponderance of the evidence, but it is also absolutely untrue. Also the county board seems in all cases in the allowance of doubtful claims and the claims now complained of, and especially in the allowance of excessive amounts on such claims, to have acted under the advice of legal counsel and others, and under the advice of counsel for both sides in the local difficulties then existing in that county. I think the plaintiff has utterly failed in its proof as to all the allegations of its petition charging fraud or corruption as against the defendant. While he acted mistakenly in several instances under the bad advice of counsel and others, yet, from the evidence in the case, I do not think that it sufficiently appears that he acted corruptly. For the reasons above stated I concur in the judgment.

1. To authorize a court to rectify a contract, and insert other and additional terms and conditions therein, the proof must be full, strong, clear, and the fact shown beyond reasonable controversy.

2. In order to maintain an action for the specific performance of a contract, required by the statute of frauds to be in writing, it is essential that the whole contract, with all its terms and conditions, made certain and definite, be in writing, or that they can be made definite and certain by reference to other written instruments, or by ref erence to extrinsic and existing facts, which may be shown to the court. Fry v. Platt, 32 Kan. 62, 3 Pac. Rep. 781, cited and followed. (Syllabus by Simpson, C.) Commissioners' decision. Error from district court, Brown county; R. C. BASSETT, Judge.

Waggener, Martin & Orr and C. W. Johnson, for plaintiffs in error. James Falloon, for defendants in error.

SIMPSON, C. The facts are embodied in the special findings made by the trial court, as follows:

"(1) In the month of September, 1886, the Chicago, Kansas & Nebraska Town Company were the owners of three lots in the city of Horton, Brown county, Kan., described as follows: Lots 5, 6, and 7, in block 10;' and at said time they sold the said lots to William M. Wellcome and John D. Blair, who were then and have ever since been residents of Hiawatha, in said county. At the time of said sale the said town company did not convey the said lots by deed, but executed a contract to convey the same to said purchasers, in consideration of the payment of the sum of $400.

"(2) Some time after the purchase of the said lots by the said Wellcome and Blair, they made an assignment on the back of said contract given them by the town company, whereby they assigned to one F. D. Krebs a one-third interest therein, and the said Krebs has ever since been the owner of a one-third interest in the said contract for a deed.

"(3) The said town company has never executed a deed in pursuance of said contract, and the legal title to said lots before and

since said purchase has remained in said company, and is in the town company at the present time, and upon said contract for a conveyance, before a deed is due from said town company, they are entitled to be paid a balance due on said purchase price of $

but the town company have been ready to convey said lots by deed upon payment of the unpaid purchase money ever since the making of said contract.

"(4) On the 12th day of May, 1887, the said F. D. Krebs, who was then engaged in a bank at Horton, Kan., was the owner of a one-third interest in the contract for a deed, and was the duly-authorized agent of John D. Blair and W. M. Wellcome for the sale thereof; and on the morning of said day Alva C. Ricksecker, one of the plaintiffs and one of the copartners in a real-estate firm doing business as Brundige, Bear & Ricksecker, at Horton, Kan., went into the bank of the said Krebs, at Horton, and asked the said Krebs if he would not sell the said lots. Said Krebs at first declined, but finally, in said conversation, he told said Ricksecker that he would sell said lots for $1,100,-$550 cash, and $550 in one year, secured by a note bearing 10 per cent. interest and a mortgage upon said lots. The said Alva C. Ricksecker then asked the said Krebs if he would let him sell the said lots, and hold said offer open for three or four days, and Krebs replied that he would give him one week for the sale of said lots upon said terms.

"(5) Said Ricksecker then left said bank, and was gone fifteen or twenty minutes, when he returned, and said to the said Krebs that they (meaning the firm of Brundige, Bear & Ricksecker) would take said lots upon the terms proposed by the said Krebs; and thereupon they paid to the said Krebs, by check and currency, the sum of $100 upon said purchase; which said $100 was thereupon by the said Krebs deposited in said bank to the credit of W. M. Wellcome, and which still remains to his credit upon the books of said bank. At the time of signing the said memorandum receipt Krebs said that he would at once send for the deeds.

"(6) At the time the said Ricksecker notified the said Krebs that he would take said lots, he produced and handed to the said Krebs, to be signed, the written memorandum receipt referred to in plaintiff's petition, which is in words and figures as follows, to-wit: H. W. Brundige. S. E. Bear. A. C. Ricksecker. Office of Brundige, Bear & Ricksecker, Real-Estate, Loan, Insurance Agents, and Notaries Public. $100. Hortón, Kansas, May 12th, 1887. Received of

Brundige, Bear & Ricksecker, one hundred dollars, as part cash payment on purchase of lots five, six, and seven, in block number 10, situated in the city of Horton, Brown county, Kansas. Total purchase price, $1,100. Balance due, $450, on delivery of papers. W. M. WELLCOME. By F. D. KREBS, Agent. [Indorsed:] State of Kansas, Brown county

SS.:

This instrument was filed for record on Oct. 1st, 1887, at 11 o'clock A. M., and duly recorded in Book 31, on page 131. M. G. HAM, Register. Fee, 25. Pd. [Seal.]'

The said Krebs thereupon took the said con tract, and hastily read that portion of the same which acknowleged the receipt of $100, and signed it, without giving any further attention, and returned it to the said Ricksecker.

"(7) The said receipt was drawn upon a blank used in the office of the said real-estate firm of Brundige, Bear & Ricksecker, and was filled out by some member of said firm in their office, and when the said Krebs was not present, and the said Krebs had no knowledge that such a memorandum contract had been prepared, or was going to be prepared, until it was handed to him for his signature as aforesaid.

"(8) Shortly after the said memorandum receipt or contract was signed as aforesaid, the said Krebs notified the said John D. Blair and W. M. Wellcome of the sale of said lots, and the terms of said sale, and requested them to forward to him a deed conveying said lots to the said Brundige, Bear & Ricksecker; and within a few days, and before the 18th day of May, 1887, the said Krebs received back a warranty deed from William M. Wellcome and John D. Blair and their wives, conveying to the said plaintiffs the said lots in controversy, and the said deed was kept by the said Krebs at the bank until the 21st day of May, 1887, when it was returned to Blair and Wellcome.

"(9) From the 12th day of May, 1887, no demand was made of the said Krebs, or any of these defendants, for said deed, and no communication was had between the said Krebs and any of the plaintiffs, in reference to consummating the said sale, until on the 21st day of June, 1887, the said Ricksecker made inquiry of the said Krebs for the said deed, and was informed by Krebs that he had sent it back. During all of said time the plaintiffs were depositing money and doing business with the bank of Horton, and some of them were in said bank nearly every day.

"(10) On the morning of June 22, 1887, the plaintiffs made a tender of $450 to the said Krebs, and demanded a deed to the said lots, and stated that they were willing to execute a note and mortgage for the deferred payment, and were then told by the said Krebs that he had no deed for them; and thereafter, on the same day, the said plaintiffs made a tender to the defendants John D. Blair and W. M. Wellcome of $450, but the said John D. Blair and W. M. Wellcome refused to accept the same.

"(11) On June 25, 1887, the said plaintiffs, at Hiawatha, Kan., tendered the defendant W. M. Wellcome $450 in gold, and told him they were ready to execute a note and mort gage at any time for the deferred payment, and demanded the deeds to said lots; but the said W. M. Wellcome refused to accept saṀ1

money, and said note and mortgage, and to make said deed.

"(12) On the 27th day of June, 1887, about two hours before the bringing of this suit, C. W. Johnson, the attorney of the plaintiffs, made a tender to W. M. Wellcome of a note for $550, due in one year, and a mortgage to secure the same upon the lots in controversy, the said note and mortgage being executed by the plaintiffs herein, but the said defendants have refused, and still refuse, to execute any deed to the plaintiffs for said lots.

"(13) At the time this suit was brought the plaintiffs deposited in court the note and mortgage as described in the last finding, and the same have remained on file in the custody of the clerk of this court since the bringing of said suit; and, on the same day this cause was called for trial, the plaintiffs tendered in open court to the defendants $450, and deposited the said sum with the clerk of this court.

"(14) At the time of the conversation between said Krebs and Ricksecker, on May 12, 1887, the said Ricksecker did not know who were the owners of said lots until the said receipt was signed, when he ascertained that William M. Wellcome was to make the deed, and at no time during any of the negotiations between the parties was any mention made of the interest of said F. D. Krebs in the contract from the town company, and in the said transactions it was never agreed or understood that Krebs should join in the execution of a deed to the plaintiffs, nor was John D. Blair mentioned in the oral agreement on May 12th, nor until a deed was demanded and refused. No agreement was made between any of the parties hereto, as to when or how the title from the Horton Town Company should be obtained.

(15) The wives of the defendants never had any part in the contract between plaintiffs and defendants relating to the sale of the lots, and they have never had anything to do in said transactions, except as referred to in the eighth finding.

"(16) On the 12th day of May, 1887, the said lots were vacant and unimproved, and have so remained ever since. The plaintiffs did not act towards taking possession thereof, except that shortly after the commencement of this suit they put up 'For Sale' notices thereon. The defendants paid the taxes on the lots for 1887.

said plaintiffs have never received back the money.

"Conclusions of Law. Time being of the essence of the contract, and the plaintiffs having failed to perform their part of the agreement within the time limited for the sale of said real estate, they ought not to have a reformation of the contract, nor specific performance, and the defendants should recover their costs herein."

The plaintiffs below bring the case here for review.

The theory upon which this action was probably instituted was that as the contract of the 12th day of May, made between Ricksecker and Krebs, could not be enforced under the statute of frauds, the receipt for $100 could be so reformed as to embrace all the terms and conditions of the sale, and then specific performance would be decreed. The plaintiffs in error, who commenced this action below, have never asked that the verbal contract be enforced; the prayer of their petition is that the memorandum receipt be reformed and then enforced. In the nature of things, the first question is, ought the contract to be reformed? The trial court refused to decree a reformation, or, speaking with greater legal precision, a rectification. This is equivalent to a finding of fact against the plaintiffs in error on that question, and in this particular case, in view of the conflict in the evidence, and all the other considerations so often enumerated, will not be disturbed. Special findings of fact numbered 6 and 7 state the circumstances under which the receipt was signed, and seem to us to authorize the conclusion of the trial court not to reform the contract in accordance with the claim of the plaintiffs in error.

It has been laid down by the text-writers, by Story in his Equity Jurisprudence, and by courts of last resort, that, before a court can decree a rectification, the evidence must be "strong and plain." Whart. Cont. § 208. "That the error should be proved beyond reasonable doubt." Story, Eq. Jur. (12th Ed.) § 157, citing Tucker v. Madden, 44 Me. 206; Shattuck v. Gay, 45 Vt. 87; Hudson Iron Co. v. Stockbridge Iron Co., 107 Mass. 290; Edmonds' Appeal, 59 Pa. St. 220; Coale v. Merryman, 35 Md. 382; Hileman v. Wright, 9 Ind. 126; Miner v. Hess, 47 Ill. 170. The proof must be "full, clear, and decisive." Bish. Cont. § 708, citing, in addition to those cited by Story, Insurance Co. v. Davis, 131 Mass. 316; Wry v. Cutler, 12 Heisk. 28;

thereto had been, rapidly advancing in value in the city of Horton, and continued to advance in value until the present time; but the market value of the said lots on the 21st day of June, and since, is not shown by the evidence.

"(18) Shortly after the demand was made of the defendants for a deed, F. D. Krebs requested one of the plaintiffs to call at the bank, and get the $100 paid on the lots, but

bell v. Hatchett, Id. 548; Vreeland v. Bramhall, 28 N. J. Eq. 85; Flaacke v. Jersey City, Id. 110; Cummins v. Bulgin, 37 N. J. Eq. 476. It is also said by Bishop that "mere preponderance of evidence is not enough. The mistake must appear beyond reasonable controversy." Bish. Cont. § 708, supra. Citing Potter v. Potter, 27 Ohio St. 84; Hinton v. Insurance Co., 63 Ala. 488.

The trial court might have very properly

stopped with a refusal to reform the contract, but it gave, as an additional reason for its decree against specific performance, that time was of the essence of the original contract, and performance was not had or tender made within the week. This conclusion we do not assent to, but, in addition to what has already been said about the failure of proof to compel rectification, we are confronted with the requirements of the statute of frauds in contracts of this character. The effect of the special findings of the trial court is that Krebs, at the time of the execution of the receipt, intended to sign only an acknowledgment of the payment for $100. But put it in the strongest view that can be taken in favor of the plaintiffs in error, and then we have a contract for the sale of the lots, signed by the party that is to be charged, that does not contain all the terms and conditions of a sale, but shows affirmatively on its face that there are other terms and conditions that must of necessity exist to make the contract complete. In the case of Fry v. Platt, 32 Kan. 62, 3 Pac. Rep. 781, VALENTINE, J., says: "In order to maintain an action for the specific enforcement of a contract, where the contract is required to be in writing by virtue of the provisions of the statute of frauds, it is required that the whole of the contract, with all its essentials, be in writing, and that its terms be definite and certain, or that they can be made definite and certain by reference to other instruments in writing, or by reference to extrinsic and existing facts which may be shown to the court." It seems therefore that, if we accept the receipt as embodying a part of the terms and conditions of sale, it is so indefinite and uncertain, as to when and how the balance of the purchase money is to be paid, that specific performance could not be decreed. We recommend that the judgment be affirmed.

SIMPSON, C. On the trial of this cause in the district court of Franklin county, the parties made an agreed statement of facts, and the court made this statement, in the form of special findings of fact, as follows:

"(1) The plaintiff is a banking corporation duly organized under the laws of the United States commonly called the National Currency Act,' and, as such bank, is doing business at Ottawa, in this state. (2) C. C. Minton is, and for the last past year or more has been, a stockholder in said bank, and the cashier thereof; he is also, and for the six months last past has been, a councilman of said defendant city (3) The city of Ottawa is, and for many years has been, a city of the second class, in this state. (4) On the 19th day of May, 1887, the city of Ottawa duly entered into a contract in writing with the firm of Hanway Bros., whereby the latter agreed to macadamize a certain street in the city for a certain sum per yard. This contract was duly performed by Hanway Bros., and accepted by the city, so that on the 18th day of October, 1887, the city owed to Hanway Bros. on said contract the sum of $1,461.24, which has not been paid. (5) On the 8th day of July, 1887, said Hanway Bros. owed the plaintiff the sum of $3,000 for moneys before that time loaned to them by the bank; and thereupon, to secure said debt, Hanway Bros., at the request of the bank, duly executed the written assignment, a copy of which is attached to the petition. They were then engaged in the work under said contract, and thereafter continued in the full and sole management and control thereof, the same as though the assignment had not been made, to its completion, October 18, 1887. (6) During the summer of 1887, the firm of Thomas Bros., intervenor herein, purchased time-checks, from time to time, issued by said Hanway Bros. to the men employed by them upon said macadam

(43 Kan. 294)

FIRST NAT. BANK v. CITY OF OTTAWA et al. (Supreme Court of Kansas. March 8, 1890.) BANKS-COLLATERAL SECURITY – GARNISHMENT— CITIES.

1. A banking corporation organized under the laws of the United States can take an assignment of the money due and to become due from a city of the second class, on a contract for paving a street, from the contractors, to secure an existing, bond fide indebtedness by the contractor to the bank.

2. Considerations of public policy will not allow a city of the second class to be liable under a process of garnishment. Switzer v. City of Wellington, 40 Kan. 250, 19 Pac. Rep. 620, cited and followed:

(Syllabus by Simpson, C.)

Commissioners' decision. Error from district court, Franklin county; A. W. BENSON, Judge.

H. P. Welsh, for plaintiff in error. Wm. H. Clark, H. A. Richards, W. Littlefield, and Mechem & Smart, for defendants in

error.

Thomas Bros. on said time-checks, at each stated period of the month, as they (Hanway Bros.) received their pay from the city on their contract, until October 5, 1887, when Thomas Bros. held said checks so purchased by them to the amount of $462, when Hanway Bros. gave their promissory note therefor to Thomas Bros., due November 6, 1887, and on the back of said note made and assigned, at the time of its execution, the following agreement, viz.: We do hereby agree to pay the within note out of the money due us from the city of Ottawa for macadam.' (7) On the 18th day of October, 1887, at 9 o'clock A. M., Thomas Bros. filed a notice in writing with the city clerk of their claim on said fund, as set forth in the answer of the city herein, and at 10 o'clock A. M. of the same day the plaintiff filed with said city clerk a copy of their said assignment. (8) On the 17th day of October, 1887, Robert Atkinson, intervenor, commenced an action before a justice of the peace of this county, against Hanway Bros.,